EDITORIAL: Don’t hide government records on ‘private’ devices

A new court ruling puts legal heft behind a crucial proposition: Modern technology should not be a way for government to bypass public scrutiny. Public agencies should ensure that all official communications about government business are open to public review — no matter what platform those discussions use.

A Santa Clara County judge ruled this month that San Jose could not withhold city officials' “private” text messages and emails about city business. A civic activist sued the city in 2009, seeking texts, emails and other messages relating to public business that city officials sent via their personal cell phones and email accounts. San Jose claimed that it had to share only those electronic communications that used city phones and email.

The judge ruled, however, that the content of the messages, and not the platform of communication, should determine whether the material is public record. Discussions of government business do not become confidential simply because they take place in private email rather than through a city account. The same applies to text messages and other electronic communications. The ruling only covers San Jose for now, but could have statewide effect if higher courts uphold the decision.

Any other interpretation would carve a huge loophole in the state's Public Records Act, which ensures public access to government documents. Giving confidentiality to any official communications that don't take place over city devices or accounts would create a public records standard wide open to abuse.

Access to official records helps voters hold government accountable for its actions, and provides details necessary to judge elected officials' performance. Laws that force government to operate in full view also help deter graft, insider dealing and special-interest agendas, which wither in the glare of the public spotlight. Allowing loopholes in that safeguard would only undermine good government.

Ploys to avoid outside scrutiny do exist, as San Bernardino County has demonstrated. A special counsel investigating former Assessor Bill Postmus' abuse of office reported in 2009 that Postmus and his aides used personal messages on their Blackberries to avoid leaving any record of their discussions. That secrecy helped enable Postmus' misconduct and allowed his scheming to take place outside public view.

Public agencies should avoid those pitfalls by setting careful policies, such as requiring all discussions of public business to go through government accounts and servers. Or agencies should demand that officials copy any private-channel communications about public matters to government email or message accounts. Such approaches avoid privacy concerns while ensuring that public business remains public.

Technological advances do not supersede the public interest in transparent government. Messages about government business should be public record, regardless of what means officials use to communicate.